STATE AUTO PROPERTY & CASUALTY INSURANCE COMPANY V. HONORABLE EDDIE C. LOVELACE, JUDGE, CUMBERLAND CIRCUIT COURT AND KENTUCKY FARM BUREAU MUTUAL INSURANCE COMPANY, BOBBY SEVERE

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IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED : OCTOBER 1, 2009 J-I E ,~§uyrrmp xxurf of 2009-SC-000 144-MR STATE AUTO PROPERTY & CASUALTY INSURANCE COMPANY V. ON APPEAL FROM COURT OF APPEALS CASE NO . 2008-CA-001950 CUMBERLAND CIRCUIT COURT NO. 07-CI-00027 APPELLEE HONORABLE EDDIE C. LOVELACE, JUDGE, CUMBERLAND CIRCUIT COURT AND KENTUCKY FARM BUREAU MUTUAL INSURANCE COMPANY REAL PARTY IN INTEREST AND BOBBY SEVERE', REAL PARTY IN INTEREST MEMORANDUM OPINION OF THE COURT AFFIRMING State Auto Property & Casualty Insurance Company (State Auto) appeals as a matter of right the decision of the Court of Appeals which denied State Auto's writ of prohibition against Judge Eddie C . Lovelace of the Cumberland Circuit Court:. Judge Eddie C . Lovelace denied State Auto summary judgment and ruled adversely to State Auto on certain discovery matters. For the reasons set forth herein, we affirm the Court of Appeals. BACKGROUND This matter began in the Cumberland Circuit Court as a result of an automobile accident between Bobby Severe and Angela Spears . Spears was injured and filed suit against Severe . State Auto insured Spears and also provided the underinsured coverage (UlM carrier) . Severe was insured by Kentucky Farm Bureau Mutual Insurance Company (KFB) for $100,000 .00. A Coots' letter was sent pursuant to KRS 304.39-320(4) and the UIM carrier paid the $100,000 .00 to Spears, preserving its subrogation rights. Subsequently, the UIM carrier paid Spears an additional $50,000 .00 to settle the UIM claim against it. At this point, Spears has been made whole and is out of the picture, although State Auto is subrogated to her claims against Severe for $150,000 .00. State Auto then made aa demand against KF13 for the $ 100, 000.00 KFB offered Spears to settle. KF13 refused . State Auto filed suit against KFB for the $100, 000. 00 advanced, and against Severe for the $50,000.00 paid in UIM benefits. State Auto moved for summary judgment against KF13 for the $100, 000. 00 on the theory that pursuant to KJRRS 304 .39-320(4), it was entitled to reimbursement as a matter of law. The trial court denied summary judgment on grounds that State Auto only stepped into the shoes of Spears, so State Auto would have to prove liability as well as damages . The trial court also made some pre-trial discovery rulings that State Auto objects to. 1 Coots v. Allstate Ins . Co ., 853 S.W.2d 895 (Ky. 1993) . State Auto petitioned the Coup. of Appeals for a writ. (CR 76.36) to prohibit the trial court fi-onl acting outside its jurisdiction, or alternatively, from ordering that State Auto may not take the deposition of Todd Whittle (the adjuster of KFB who evaluated the claim) . The Court. of Appeals denied the writ and State Auto appeals as a matter of right .2 ANALYSIS A writ of prohibition is an extraordinary remedy, available only in two instances: 1) when a "lower court is proceeding or is about to proceed outside its jurisdiction and there is no remedy through an application to an intermediate court; or 2) the lower court is about to act incorrectly, although within its jurisdiction, and there exists no adequate remedy by appeal or otherwise, and great injustice or, irreparable injury will result." Ally Cat, LLC v. Chauvin, 274 S.W .3d 451, 456-57 (Ky. 2009), uotin~ Hoskins v. Maricle, 150 S.W.3d 1, 10 (Ky. 2004) . "[A]lthough a writ of prohibition will issue only in exceptional circumstances, whether to do so lies within the sound discretion of the court in which the writ is sought." St. Clair v. Roark, 10 S.W.3d 482, 485 (Ky. 1999) (citin Haight v. Williamson , 833 S .W.2d 821, 823 (Ky. 1992) ; Jones v. Hogg, 6,39 S.W.2d 543, 543 (Ky. 1982)) . "The court in which the petition is filed may, in its discretion, address the merits of the issue within the context of the petition for the writ, or may decline to do so on grounds that there is an adequate remedy by appeal." St. Clair, 10 S.W.3d at 485 . 2 CR 76 .36(7) . The standard of review we must. apply when reviewing a. denial of a writ, of prohibition depends on the class or category of writ . Grange Mutual Insurance Co. v . Trude, 151 S.W.3d 803, 810 (Ky. 2004). When the lower court is alleged to be acting outside its jurisdiction, the proper standard is de novo review because jurisdiction is generally only a question of law. Id . When an appellant alleges that the court with which the writ was filed is acting within its jurisdiction but in error, the standard is abuse of discretion . Id . In the. case before us, State Auto argues that. the trial court's rulings in this case were in direct conflict with the language of KRS 304.39-320(4) and exceeded its jurisdiction . We disagree that the trial court exceeded its jurisdiction, because the circuit court is the proper court to interpret a statute . 3 Thus, the circuit court had subject matter jurisdiction, and the Court of Appeals so held. The rulings by the trial court are alleged to be in error. Therefore, State Auto's argument should have been that the court is acting erroneously within its jurisdiction, which requires a review under an abuse of discretion standard . The Court of Appeals also held the petitioner failed to show that the Cumberland Circuit Court was acting erroneously within its jurisdiction and that a great injustice and irreparable injury would result if the petition was not granted . We agree. Summary judgment, discovery, and protective orders are all matters within the jurisdiction of the trial court and upon a final judgment can be appealed . The only allegation of injustice is that State Auto will have to try the case, and will have to do its own discovery on damages. Even if the 3 See KRS 23A.010(l) . Court of Appeals had believed the trial court was acting erroneously within its jurisdiction, the decision whether or not to issue a writ is discretionary with the Court of Appeals, which may decline to do so on the grounds that there is an adequate remedy by appeal. St. Clai , 10 S.W. 3d at 485 . Accordingly, we cannot say that. the Court of Appeals abused its discretion in denying Appellant's writ of prohibition, and hence, we affirm. All sitting. All concur. COUNSEL FOR APPELLANT : David A. Nunery Angela Michelle Call Steven Casey Call Nunery & Bennett, PLLC 105 East Main Street Campbellsville, KY 42718 COUNSEL FOR APPELLEE: Honorable Eddie C. Lovelace Judge, Cumberland Circuit Court Justice Center 104 Cumberland Street Albany, KY 42602 COUNSEL FOR REAL PARTY IN INTEREST KENTUCKY FARM BUREAU MUTUAL INSURANCE COMPANY: John C . Miller Bertram, Cox, & Miller, LLP 321 East Main Street P.O. Box 1155 Campbellsville, KY 42718 COUNSEL FOR REAL PARTYIN uvrEREST BOBBY SEVERE : Jeffrey Hall Hoover Hoover Law Office 40 South Main Street: P.O . Box 985 Jamestown, KY 42629 Stephen Howard Poindexter 412 Courthouse Square, Ste 202 P.O . Box 904 Burkesville, KY 42717

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